Huckabee, HIV/AIDS, Travel, and Bigotry

December 12, 2007

You’ve probably heard about Mike Huckabee’s 1992 statement about isolating HIV/AIDS patients, and his subsequent defense, essentially, “It was so long ago, we didn’t know anything then.” As it turns out, we knew some time prior to 1992 that casual contact wasn’t an HIV transmission risk. We also continue to have travel policies that stigmatize HIV/AIDS patients to no significant public health benefit (again, because of the casual contact issue), and the Department of Homeland Security is proposing changes that do little to help.

There are some simple steps all HIV-positive tourists can take regardless of their destinations to minimize chances of undue customs delays or outright deportation:

* Look healthy. Travelers who appear to be ill are likely to be targeted for indepth questioning or inspections.

On the Road With HIV: A Guide for Positive Travelers

* Be discreet and polite.Don’t draw any undue attention to yourself that could cause customs officials to pull you aside.

* Don’t advertise the fact that you’re HIV-positive. It pains me to have to give that kind of advice, but you might not want to wear a PLWHA t-shirt.

* Keep your anti-HIV medications in their original bottles, and do not attempt to hide the containers. If you’re hiding them customs officials may think they contain contraband and may hold you to verify that they are permitted into the country.Opening packages or taking pills out of their prescription bottles will delay your time in security(more info).

*Pack extra medicine and supplies when traveling in case you are away from home longer than you expect or there are travel delays.

*If you are taking injectable medications (e.g., Fuzeon, insulin, testosterone) you must have the medication along with you in order to carry empty syringes(more info).

*Depending on the circumstances it may be worthwhile taking along a doctor’s certificate (in English) which shows that the holder is reliant on the medication and that it has been prescribed by the doctor.Carry a copy of your prescriptions in your carry-on, purse, or wallet when you travel.

*You can ask and are entitled to a private screening to maintain your confidentiality. Show copies of your prescriptions and/or your medication bottles and if you have any problems ask to see a supervisor.

In general, the above points apply to entering countries with ambiguous or restrictive regulations: as long as HIV positive status does not become known, there will be no serious problems for a tourist. However, if someone is suspected of being HIV positive, or if the authorities have concrete reasons to believe they are, entry may be refused. Since october 2008 non-immigrant US visas are granted to HIV-positive people who meet certain requirements, instead of waiting for a special waiver from DHS(more info).

My philosophy on the whole issue is that it’s not an issue, so I don’t present it as one.And I’ve never had any problems over the years of extensive travel.

The Congressional entry restriction had been lifted, but that a second entry restriction remained – contained in administrative law (regulations) published by the United States Department of Health and Human Services (DHHS).

There have been two developments since then:

In the media it was mentioned a process announced by George W. Bush on World AIDS Day 2006 to extend the four categories under which an HIV entry waiver is easily available (business, medical treatment, conferences and visiting friends/family) to include a fifth streamlined category for pleasure travellers.

A year and ten months later, DHHS finally announced this process has been completed and HIV-positive tourists can now access the streamlined process by contacting the US Embassy in Australia.

It was also reported it was likely the DHHS would remove the second entry restriction contained in regulations listing HIV as an ‘inadmissible condition’. This has been confirmed by the Director of the Centres for Disease Control and Prevention, Dr Julie L. Gerberding, in a letter to the Washington Post on Mon 6 Oct 2008. However, just as changing the waiver process took about 22 months, it will take some time for the rule change to be drafted, published for public comment, and finalised.

Update: August 2008

In August, an Act of Congress containing a provision lifting the HIV entry restriction was passed by Congress and signed into law by the president. The provision was inserted by Democrat Senator Barbara Lee into a bill authorising continued American international aid for HIV prevention (including abstinence education) and treatment programmes in developing countries. This was a fairly clever move on Lee’s part because the President was hardly going to veto (block) an Act providing funding for a programme he initiated himself.

However it has since been discovered there is ANOTHER entry restriction, imposed by the US Department of Health and Human Services in administrative law, which has not been removed yet. There is reason to believe it may be removed soon, because the DHHS is also the home of the Centers for Disease Control, which has advocated strongly against the entry restriction, and also because the removal of the congressional entry restriction means the departmental restriction is no longer required by law.

Continue to take care if you are travelling to the States!
Special Waiver

The United States of America is one of the countries that prohibit HIV-positive foreigners to enter its borders. HIV-positive people must request a ?special waiver? to be granted entrance to the US. This waiver, pictured above and referred to as ?Waiver of 212(A)(1)?, is stamped into an HIV-positive person?s passport as a permanent record of his or her HIV status.

We believe that people living with HIV/AIDS have the right to full enjoyment of their human rights, including the right to privacy, confidentiality and protection from stigma and discrimination. Short-term travel policies of any country, in which disclosure of HIV status is required for prospective visitors, treat HIV-positive people seeking entry on short term visas differently on the basis of their HIV-positive status. These are not only discriminatory, but also contribute to fuelling national and international stigma against people living with HIV/AIDS.
Traveling to the USA with HIV

There are two things to be aware of if you are HIV+ and travelling to the USA:

* The law relating to visiting the country if you are HIV+ and
* How to enter the country legally

The law relating to entering the USA if you are HIV+

A detailed history of the bar on people with HIV entering the USA can be found by doing an internet search. However, in essence, this is what happened and where we are today, to the best of our knowledge and from feedback we have received from our clients:

The USA, along with other countries, has restrictions on the entry to the country if you are HIV+.

In 1987, because of the widespread fear of HIV, the Department of Health and Human Services (HHS) introduced an administrative policy restricting entry to the USA. However, in 1991 they reversed their position and they tried to reverse the policy.

Even though two Adminstrations (one Republical, the other Democrat) attempted to reverse the policy, Congress turned the policy into law in 1993.

On December 1, 2006, President Bush announced that his administration would create a ?categorical? waiver to the HIV bar.

Whilst the letter of the law still bars people who are HIV+ from entering the USA, there are situations when that bar can be waived. For example, if someone is travelling to the USA to attend a conference or if they can show that their HIV is “controlled”, and that they will not be risk to public funds because they have HIV inclusive travel insurance (such as ours).

We have had several reports from clients who have applied for a visa, disclosing their HIV status and they have been granted. One was for 3 years, one for 5 and another for one year with a maximum stay of 31 days per trip for holiday purposes.

Entering the country legally

Visitors to the USA enter either using the visa waiver system or by having a visa.

The law says that if you are HIV+ (and therefore deemed to have a “communicable disease”) you are not entitled to enter the country under the visa waiver system. You must hold a visa, with the HIV bar being waiverd, to enter the country legally.

Immigration officers (we are told) have an element of discretion. This can work against you as well as for you!

If you happen to be spot checked and you are carrying HIV medication, you could be refused entry to the USA and sent home. Please note that you would be deemed as not having obeyed the laws of the country and your travel insurance policy will not cover you for additional air fares.

Some people post medication ahead to friends. However, if this is intercepted by US customs, the people receiving the medication could be breaking the law and be penalised. This could well result in you not being allowed to enter the US in the future.

If you are not carrying medication and you are spot checked, there is obvioualy less risk that it will be discovered that you are HIV+. However, you are still breaking the law by attempting to enter under the visa waiver system.

The only legal way to enter the USA is by obtaining a visa that has the HIV bar waived.

KNOW YOUR RIGHTS
Immigration border agents are not supposed to make medical determinations and a noncitizen’s own admission to having HIV is not sufficient proof to deny entry. The noncitizen should be paroled in for deferred inspection for admission and undergo an HIV antibody test administered by a doctor of the Public Health Service (a doctor approved by immigration.) The doctor will notify immigration of the HIV test results. DHS may detain (jail) the noncitizen during this process or give them an appointment to return.

If a noncitizen is eligible to apply for a waiver, he or she may ask immigration for the waiver. If the noncitizen is not eligible or is later denied a waiver by immigration, he or she will then go before an immigration judge.

Because of the 1996 laws reforming many immigration procedures, DHS officers now may “summarily remove” certain noncitizens entering the United States, without a hearing with an immigration judge. This procedure is called “expedited removal” and applies to those trying to enter the United States with false or no immigration documents. It does NOT apply to HIV positive noncitizens with valid visas or to lawful permanent residents. Thus a non-immigrant or visitor with valid entry documents should not be subject to summary removal. Any noncitizen wishing to challenge their expedited removal by DHS should insist on a hearing with an immigration judge. Otherwise, a DHS agent may try to convince the noncitizen to leave the United States on the next plane or bus.

Tips for Travelers
Finding HIV-related medicine or literature about AIDS in a noncitizen’s bag may lead a DHS officer to ask a traveler questions about HIV. For this reason, visitors (non-immigrants) should try not to carry their HIV medicine or literature about AIDS in their luggage when they come into the United States. Other noncitizens with HIV who are leaving the US should consider bringing only the amount of medicine they will need for their trip and plan to get new medicine when they return. It is important that ALL travelers know their rights.

* If a DHS agent stops and questions a visitor (non-immigrant) with HIV, the visitor should ask for the HIV waiver for visitors. This is different than the waiver for noncitizens intending to stay in the United States (immigrants).
* If a DHS agent won’t grant the waiver, the visitor should ask for a hearing before an immigration judge.
* If a DHS agent stops and questions a lawful permanent resident, the lawful permanent resident should demand to call his or her lawyer. If the agent arrests him or her, he or she should insist on a hearing with an immigration judge.
* If a DHS officer decides any noncitizen traveler is HIV positive, the noncitizen should talk to a lawyer before answering any of the DHS officer’s questions. Otherwise, what the noncitizen says can be used against him or her in an immigration hearing. DHS agents are not required to inform an individual of their rights until after their arrest and placement in formal proceedings. Therefore, there are numerous cases where immigrants are not informed of their rights while in DHS custody.
* Noncitizens stopped by DHS may wish to assert their right to be paroled into the United States for “deferred inspection,” since only immigration-approved doctors, not immigration agents, can make a medical determination of inadmissibility. A noncitizen’s admission to having HIV is not sufficient proof to keep him or her out. DHS may decide to detain (jail) the noncitizen during this process, however, or release them with an appointment to return.